Employment Law Alert: Federal OSHA Emergency Temporary Standard for Employers with 100+ Employees

On November 4, 2021, the federal Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) to minimize the risk of COVID-19 transmission in the workplace. The ETS is applicable to employers with a total of 100 or more employees with the following exclusions: (i) workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; and (ii) settings where employees are subject to the Healthcare ETS.

On November 6, 2021, the United States Court of Appeals for the Fifth Circuit issued a temporary stay of the ETS. The order temporarily halts enforcement of the ETS pending further legal review. The judicial stay does not affect the enforceability of the COVID-19 safety guidance and vaccine mandates for federal contractors, or the Healthcare ETS.

Despite the pending legal challenges to the ETS, employers would be prudent to prepare to comply with the requirements of the ETS if the judicial stay is lifted.

Below is a summary of some of the key requirements under the ETS:

• Covered employers are required to develop, implement, and enforce a mandatory COVID-19 vaccination policy, or a policy allowing employees to elect either to get vaccinated or to undergo regular COVID-19 testing and wear a face covering at the workplace.

• Employers must provide each employee with information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; vaccine efficacy, safety, and the benefits of being vaccinated by providing the CDC document “Key Things to Know About COVID-19 Vaccines”; protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.

• Employers must determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.

• Employees are entitled to receive up to four hours of paid time to receive each primary vaccination dose. Employees are also entitled to reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose.

• Each employee who is not fully vaccinated must be tested for COVID-19 at least weekly, or within seven days before returning to work.

• Employees, regardless of vaccination status, who received a positive COVID-19 test or are diagnosed with COVID-19 by a licensed healthcare provider, must be removed from the workplace until return to work criteria are met.

• Employees who are not fully vaccinated must wear a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.

• Employers are required to report work-related COVID-19 fatalities to OSHA within 8 hours, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about them.

• Employers must comply with specified recordkeeping obligations in accordance with the ETS.

For additional information, please see the FAQs and sample policy templates published by OSHA.